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Client found not guilty of Sexual Assault after four-day trial in the Ontario Court of Justice, Kitchener. J.E. had been dating the complainant for about two years. At the time of the allegation the couple had recently resumed their relationship after a brief break-up. The complainant attended J.E.’s apartment and eventually became intimate with J.E. After some time, the condom being used for anal intercourse had broken and the complainant accused J.E. of removing the condom and to cover up what he did, he cut it with scissors. At all times, the complainant made it clear that use of a condom was necessary. J.E. explained he did not remove the condom, but it had broken. The complainant called police. J.E. waited at the apartment with the complainant. He was charged with sexual assault. The prosecution case was based on “stealthing” a term used to describe deceptively removing a condom during intercourse that constitutes a sexual assault. Joseph Neuberger of Neuberger & Partners LLP, Toronto Criminal Lawyers, was retained to defend the charge. Joseph Neuberger obtained the disclosure. The statement of the complainant was transcribed. In addition, the police photos of the client’s apartment and condo were very helpful to the defence, as the condom appeared to be oozing a whitish substance that appeared to be semen. The pictures of the condom in various states were examined by the defence expert and the separation of the condom did not support a finding of being cut with scissors or sabotaged by other means. The breakage seemed to be consistent with failure during intercourse. Further, the complainant later provided police with an email clarifying her interview that she may have consented to sexual acts including anal intercourse with a condom and only wanted J.E. charged with “stealthing”. The email demonstrated important inconsistencies with her interview. At trial, the complainant in cross-examination indicated that she did not want to attend his apartment; did not want any sexual contact and had not consented to vaginal or anal intercourse. Extensive cross-examination focused on her actions and agency in their time together. This included the complainant going to his bedroom, and on her own initiative straddling J.E. and kissing him passionately including caressing his face, head, and hair. Further cross-examination drew out from the complainant that in fact she fully engaged in sexual contact, but she adamantly stated that she never consented to vaginal and anal intercourse. However, when faced with her email to the investigating officer, she suggested that she was simply clarifying a point about what she thought he might be charged with but not that she consented to vaginal or anal intercourse. This was not inline with what she had written to the police officer. Further, in cross-examination Joseph Neuberger put the pictures of the condom to the complainant who stated that the condom was first intact, being in one piece and then she saw he had cut it into two pieces. The complainant answered that the condom in the pictures taken by the police at the apartment was not the same condom she had seen with J.E. The police evidence at trial was clear that only one used condom was found. It appeared to have semen in the condom. And that there was only one condom wrapper found torn thus demonstrating only one condom was used. The answers of the complainant about the condom depicted in the pictures may have been a product of general confusion but given her assertive answers, provided material inconsistencies in her evidence. Further, the complainant was contradicted on other key points regarding the status of their relationship. A selection of text messages exchanged between the complainant and J.E. demonstrated that the complainant was very eager to see J.E. and wanted to get married and have a family. This again was in stark contrast to her in trial testimony. J.E. testified and provided coherent and logic evidence. He was unshaken in cross-examination and strongly denied having sex without a condom and sabotaging the condom. Joseph Neuberger drafted detailed written closing submissions. The Court found J.E. believable, and that there were material issues with the complainant’s evidence damaging her reliability and credibility. The inconsistencies were very significant. Accordingly, J.E. was found not guilty of Sexual Assault.